Hoffman v Village of Sidney, 652 NYS2d 346
In a number of instances, counseling memoranda have been challenged on the theory that the employer's issuing a counseling memorandum, in and of itself, constitutes disciplinary action. The courts have rejected the notion that such an effort on the part of the employer to correct employee behavior constitutes discipline. In Hoffman, the Appellate Division ruled that an employee is not entitled to a hearing before a letter critical of his or her performance is placed in his or her personnel file, where no punishment is involved.
As to Taylor Law considerations, PERB has recognized the difference between criticism of employee performance and disciplinary action. In Port Jefferson Union Free School District v United Aides and Assistants,U-5713, PERB rejected a union's claim that every written criticism of an employee was a "reprimand."
The absence of the imposition of any punishment on the employee appears to be the key in determining if a counseling memorandum is, in fact, a subterfuge for disciplinary action. Further, courts typically view term "penalty" to mean one of the statutory penalties authorized by §75 of the Civil Service Law or a similar statute.
The issue of whether the employer’s action constituted constructive criticism or discipline was considered by the Commissioner of Education. in Matter of Fusco, Comm. of Ed. Decision 14,396 and in Matter of Irving, Comm. of Ed. Decision 14,373. In the opinion of the Commissioner of Education, the employers "crossed the line" in both the Fusco and Irving cases.
The Fusco Case:
The Commissioner said that while the general rule is that personnel given critical administrative evaluations by a supervisor are not entitled to Section 3020-a protections, a disciplinary reprimand may not be issued without a finding of misconduct pursuant to Section 3020-a.
In Fusco’s case the Commissioner found that despite the board's representation that the challenged evaluation was "intended to encourage positive change" in Fusco's performance, it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."
Instead of "constructive criticism," the Commissioner concluded that the evaluation "chastised [Fusco] for serious misconduct," including "improper release of confidential information, harassment of staff members, damaging district/union relationships...and poor leadership."
The Irving Case
In deciding Irving’s appeal, the Commissioner said that “The record convinces me that disciplinary action was taken and that Irving, a school principal, was deprived of her rights under Education Law Section 3020-a.
Conceding that Sections 1711 and 2508 of the Education Law authorize a superintendent to transfer personnel, the problem here, said the Commissioner, was that Irving's alleged misconduct. i.e., "staff mistreatment" and "parental mistreatment," were the only reasons for reassigning and demoting Irving set out in the record. The Commissioner pointed out that the several meetings between the Superintendent and Irving, and the Superintendent and the board, and the two letters given to Irving by the Superintendent, "are all part of a single process, and it is inescapable that the sole reason for [Irving's] transfer was her alleged misconduct as a principal."
Considering all of these circumstances as a whole, the Commissioner concluded that Irving was entitled to the protections of Section 3020-a, including the right to contest formal charges, "and those rights have been violated here."
Rejecting the district's argument that Irving's "transfer was for the good of the district" and thus not disciplinary in nature, the Commissioner said this theory "misses the mark." He observed, "one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district."
Another concern: A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including the events set out in the counseling memorandum in the charges constitute "double jeopardy?" No, according to the Court of Appeal's rulings in Holt v Board of Education, 52 NY2d 625 and in Patterson v Smith, 53 NY2d 98.
In these cases the court indicated that in the event an employer includes allegations based on the employee's conduct that earlier resulted in the issuing of a counseling memorandum in the charges or specifications filed against the individual in a statutory or contractual disciplinary proceeding, the inclusion of allegations in the charges and specifications involving such prior conduct does not constitute "double jeopardy."